Lopez v. Kinton et al

Filing 9

ORDER TO SHOW CAUSE: ORDERED granting Plaintiff's 6 Motion for Leave to Proceed in forma pauperis. Within 30 days from the date this Order is filed, Plaintiff must either pay the $350.00 filing fee or file a Response. If Plaintiff fails to comply, the Clerk of Court must enter a judgment of dismissal of this action without prejudice. Signed by Senior Judge Robert C Broomfield on 5/7/12. (LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Margina Marie Lopez,
Plaintiff,

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vs.

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John Kinton, et al.,
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Defendants.
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No. CV 12-178-PHX-RCB (LOA)
ORDER TO SHOW CAUSE

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Prison Complex-Perryville, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983

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and an Application to Proceed In Forma Pauperis. In a February 13, 2012 Order, the Court

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denied the Application to Proceed with leave to refile. On March 15, 2012, Plaintiff filed a

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new Application to Proceed In Forma Pauperis (Doc. 6). On April 2, 2012, Plaintiff filed

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a Notice of Change of Address (Doc. 8) indicating she is no longer in custody. The Court

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will require Plaintiff to either pay the filing fee or show good cause why she cannot pay.

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Pursuant to 28 U.S.C. § 1915(b)(1), “if a prisoner brings a civil action or files an

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appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee.”

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28 U.S.C. § 1915(b)(1). Because Plaintiff brought this civil action while she was still a

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Plaintiff Margina Marie Lopez, who was formerly confined in the Arizona State

prisoner, she will be required to pay the full amount of the $350.00 filing fee even though

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she is now released. See Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002) (“Under the

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[Prison Litigation Reform Act], all prisoners who file [in forma pauperis] civil actions must

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pay the full amount of the filing fee.”)

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If Plaintiff were still a prisoner, the Court would order Plaintiff’s custodian to

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periodically withdraw funds from Plaintiff’s inmate account according to the statutory

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formula in 28 U.S.C. § 1915(b)(2) until the filing fee was paid in full. However, because

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Plaintiff is no longer in custody, and therefore does not have a prison account, she cannot

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avail herself of the partial payment provisions of 28 U.S.C. § 1915(b)(1), (2). The statute

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makes no other provision for incremental collection of the fee. Therefore, Plaintiff must now

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pay the filing fee in full.

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Plaintiff will be given 30 days from the date this Order is file to either pay the $350.00

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filing fee or file a “Response” to this Order. Plaintiff’s Response must state the date of her

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release and must either promise to pay the $350.00 filing fee within 120 days from the date

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of her release or show good cause why she cannot pay the filing fee. Plaintiff’s Response

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must be made under penalty of perjury. See 28 U.S.C. § 1746 (oath requirement may be

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satisfied when a person declares under penalty of perjury that the submission is true and

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correct and signs and dates the document).

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Plaintiff is advised that even after she pays the filing fee, the Court is required to

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screen complaints brought by prisoners seeking relief against a governmental entity or an

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officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must

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dismiss a complaint or portion thereof if the plaintiff has raised claims that are legally

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frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),

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(2).

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dismiss this action without further notice. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61

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(9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order

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If Plaintiff fails to timely comply with every provision of this Order, the Court may

of the Court).
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IT IS ORDERED:

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(1)

Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 6) is granted.

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(2)

Within 30 days from the date this Order is filed, Plaintiff must either pay the

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$350.00 filing fee or file a Response as described above.
(3)

If Plaintiff fails to pay the filing fee or file a Response to this Order within 30

days, the Clerk of Court must enter a judgment of dismissal of this action without prejudice.
DATED this 7th day of May, 2012.

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